Congress Reconvenes with Several Information Governance Issues on its Priority List

Sep 08, 2015

Congress returned from its summer recess faced with pending showdowns over a September 17 deadline to vote on the Iran nuclear deal, a September 30 deadline to pass appropriations bills to fund government agencies, and a possible November deadline to increase the federal debt ceiling before the government’s borrowing authority expires once again. In between consideration of these partisan, high stakes measures, lawmakers will be working to advance several bipartisan bills that are of interest to records and information management professionals.

The Senate will attempt to resume consideration of a cyberthreat information-sharing bill (S. 754). The bipartisan legislation is sponsored by Sen. Richard Burr (R-NC) and Sen. Dianne Feinstein (D-CA), the chairman and ranking member of the Intelligence Committee, and it was reported by the Committee by a 14-1 vote on March 13. It creates a voluntary cybersecurity information-sharing process to encourage businesses to share threat information with the federal government and each other.

But it is unclear whether the chamber will be able to overcome the strong objections of privacy advocates who argue that the legislation could become another government surveillance tool. Business groups, led by the U.S. Chamber of Commerce, formed a new coalition in August to counter the privacy objections and push the legislation over the finish line. If the Senate is able to pass its version of the bill with the support of President Obama and the business community, the House is likely to move quickly to take it up and pass it.

Also teed up for consideration are two bipartisan Freedom of Information Act (FOIA) reform bills. In the Senate, the FOIA Improvement Act (S. 337) was reported by the Committee on the Judiciary in February and is awaiting consideration in the full Senate. In the House, the FOIA Oversight and Implementation Act (H.R. 653) has been introduced but has not yet been considered by the Committee on Oversight and Government Reform. Both bills seek to bring about more proactive disclosure of government records, encourage enhanced agency compliance, and improve the FOIA process for both agencies and requesters.

Similar bills were passed in the House and Senate last year, but key differences were difficult to resolve before Congress adjourned. Those differences have been narrowed in the current versions of the bills, and open government advocates are hoping to see further action in both chambers this fall.

Also expected to see movement in the near term are bipartisan bills in the House and Senate to limit abusive patent litigation. Earlier this year, the House and Senate Judiciary Committees reported out their versions of the legislation (H.R. 9 and S. 1137), both of which seek to deal with abusive patent litigation through increased transparency, more limited discovery, heightened pleading standards, and “loser pays” fee shifting. The full House appeared ready to move forward in July, but the measure was temporarily pulled to give Judiciary Committee Chairman Bob Goodlatte (R-VA) more time to build support and make the case for the legislation.

The Senate will likely take up S. 1137 if the House is successful in passing H.R. 9. However, a number of significant hurdles to enactment would still remain. One sticking point deals with the awarding of attorneys’ fees. The House bill creates a rebuttable presumption that attorneys' fees are to be awarded to the prevailing party, while the lead Senate bill would award attorneys' fees upon a finding that the non-prevailing party was not “objectively reasonable.”

Another factor creating uncertainty are the proposed changes to the Federal Rules of Civil Procedure, which will take effect on December 1, 2015, unless Congress votes otherwise. Congressional intervention is not expected since the proposed changes were submitted to Congress in April and no hearings have been held or other actions taken. But the proposed changes already address a number of issues included in the House and Senate patent reform bills, including a repeal of Rule 84 and its appendix of forms. Rule 84 currently allows plaintiffs to use a short pleading form for patent infringement cases and avoid the more detailed and complicated pleading standards set by the Supreme Court in various rulings.

The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.

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